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Likes v. Richland Correctional3/21/2005
Judge Joseph T. Clark
MAGISTRATE DECISION INSTITUTION
{ } Plaintiff brought this action against defendant, Richland Correctional Institution (RICI), alleging medical negligence. Plaintiff also requested a determination from this court whether Drs. Williams and Houser, nurses Cain and Walsh, and Debra Wipert are entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86. The issues of liability and damages were bifurcated and the case proceeded to trial on the issues of liability and civil immunity before a magistrate of the court on February 17, 2005.
{ } At all times relevant hereto, plaintiff was an inmate in the custody and control of defendant pursuant to R.C. 5120.16. Plaintiff alleges that he has received inadequate medical treatment for his chronic condition, Hepatitis C infection. According to plaintiff, his treating physician, Dr. Kenneth Williams, refuses either to approve or disapprove a gastroenterology (GE) consultation request which, if approved, would afford plaintiff the possibility of receiving a liver biopsy, diagnostic ultrasound, and ultimately treatment with Interferon therapy. Plaintiff also contends that defendant's employees, Drs. Williams and Houser, nurses Cain and Walsh, and Debra Wipert acted outside the scope of their responsibilities inasmuch as they failed to perform their duties of education and counseling as mandated by defendant's policies.
{ } Defendant denies liability and asserts that it has established protocols for managing inmates with chronic Hepatitis and that since plaintiff has been treated pursuant to such guidelines, his claims are baseless.
{ } In order to prevail on a negligence claim, plaintiff must prove by a preponderance of the evidence that defendant owed him a duty, that it breached such duty, and that the breach proximately caused plaintiff's injuries. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285. Ohio law imposes a duty of reasonable care upon the state to provide for its prisoner's health, care and well-being. Clemets v. Heston (1985), 20 Ohio App.3d 132, 136.
{ } Dr. Williams, nurse Cain, and Ms. Wipert testified that literature was readily available to inmates and that plaintiff received both counseling and educational literature regarding his condition on several occasions. The medical records also contain notations documenting the fact that information was distributed and that counseling was provided to plaintiff in regard to his condition. Plaintiff denied receiving any literature and contended that he was forced to seek information from sources outside the institution. Because of the differing accounts offered at trial, the determination of whether defendant breached a duty owed to plaintiff necessarily turns upon witness credibility. "In determining the issue of witness credibility, the court considers the appearance of each witness upon the stand; his manner of testifying; the reasonableness of the testimony; the opportunity he had to see, hear, and know the things about which he testified; his accuracy of memory; frankness or lack of it; intelligence, interest, and bias, if any; together with all facts and circumstances surrounding the testimony." Adair v. Ohio Dept. of Rehab. & Corr. (1998), 96 Ohio Misc.2d 8, 11; See 1 Ohio Jury Instructions (1994), Section 5.30.
{ } Upon review of the testimony and evidence presented on this issue, the court finds that plaintiff failed to meet his burden of proof. In considering the conflicting testimony of the witnesses, the court finds the testimony of defendant's employees to be more credible. Even assuming that plaintiff never received any literature or counseling, plaintiff failed to prove that such
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